Kiparoglou v The Queen - [2021] SASC 2

Supreme Court of South Australia
(Criminal: Application)

KIPAROGLOU v THE QUEEN
[2021] SASC 2
Judgment of the Honourable Justice Parker
22 January 2021
CRIMINAL LAW - PROCEDURE - BAIL - REVOCATION, VARIATION, REVIEW AND APPEAL
This is an application for review of a bail decision.
The applicant is charged with the offences of: (i) disorderly or offensive behaviour; and (ii) loitering alleged to have been committed on 8 July 2020.
The applicant sought to vary his conditions of bail to remove the condition that he “will not leave the State for any reason without lawful permission under the Bail Act 1985”. Further, the applicant made an oral application under s 11(6) of the Bail Act 1985 for permission to leave the state for medical reasons.
Held, per Parker J, dismissing the application:
1. The inclusion of the mandatory words “it is a condition of every bail agreement” in the chapeau to s 11(6) clearly precludes the Court from removing the condition that the applicant will not leave the State for any reason without lawful permission under the Bail Act.
2. Permission for the applicant to travel outside of South Australia is refused.
Bail Act 1985 (SA) s 11(6); Liquor Licensing Act 1997 (SA) s 117A; Summary Offences Act 1953 (SA) ss 7(1)(a), 18(2), referred to.

KIPAROGLOU v THE QUEEN
[2021] SASC 2
KIPAROGLOU v THE QUEEN
Criminal: Application

PARKER J: This judgment confirms my reasons for refusing to vary the terms of a bail agreement and also refusing to grant permission to travel outside South Australia. While I provided brief oral reasons for these two decisions, in view of further contact from Mr Kiparoglou, I consider it appropriate to provide written reasons.
Background
On 2 October 2018, Mr Kiparoglou was issued an expiation notice by SA Police as he had allegedly driven at a speed of 113 km per hour in a 100 km per hour zone. He did not expiate the offence and thereby elected to be prosecuted. The matter was set down for trial on several occasions during 2020 but the trial did not proceed. Ultimately, Mr Kiparoglou applied by email to vacate the trial date set for 6 August 2020 on the basis that he had a serious medical condition which required surgery and would make him incapacitated to participate in a trial. A Magistrate refused the email application and indicated that Mr Kiparoglou would need to make a formal application to the Court supported by an affidavit and medical evidence.
At a subsequent directions hearing on 16 July 2020, the Magistrate directed the Registrar to contact Dr Gonabadi to ascertain whether she was aware of the reasons advanced by Mr Kiparoglou on 11 July 2020. The Registrar was also directed to ascertain whether Dr Gonabadi was prepared to appear via telephone at a directions hearing concerning the capacity of Mr Kiparoglou to attend a trial based upon his medical condition. Subsequently, on 31 July 2020, the Magistrate accepted that Mr Kiparoglou was likely to be incapacitated to appear at trial on 6 August 2020 and therefore vacated that trial date.
On 22 May 2020, Dr Gonabadi signed a brief report about Mr Kiparoglou in which she stated that an MRI and CT scan had revealed “severe bony changes of his neck and spinal cord compression”. Mr Kiparoglou had been referred to a specialist and, at that time, given the nature of the condition there was a high risk of paralysis. For that reason, Dr Gonabadi had asked that his court case be postponed until he had seen a specialist. It is not apparent precisely when Mr Kiparoglou provided this document to the Magistrates Court. However, I infer that this occurred prior to the decision to vacate the trial date.
For completeness, I note that Mr Kiparoglou is also the defendant in several other matters in the Magistrates Court that he has elected not to expiate. The first of the alleged offences occurred on 24 March 2020 when Mr Kiparoglou is said to have driven an unregistered and uninsured motor vehicle on a road. A further alleged offence occurred on 2 May 2020 when Mr Kiparoglou is said to have driven at 87 km per hour in an 80 km zone. Another alleged offence occurred on 8 July 2020 when Mr Kiparoglou is said by the police to have behaved in a disorderly manner in the vicinity of licensed premises contrary to s 117A(1) of the Liquor Licensing Act 1997 (SA). None of these matters has yet been set down for trial. While Mr Kiparoglou is not subject to a bail agreement in relation to these matters, his fitness to attend at trial may potentially become an issue.
On 8 July 2020, Mr Kiparoglou was charged with the offences of disorderly conduct contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) and failing to cease loitering contrary to s 18(2) of the Summary Offences Act. It is alleged by the police that the receptionist at the Roxby Downs Doctors’ Clinic had advised Mr Kiparoglou that he was no longer permitted to attend at the practice. Due to the nature of his response, the police were called. On observing the behaviour of Mr Kiparoglou, the police directed him to leave the premises, but he refused. He was then escorted by the police to the car park. He was directed to leave the area immediately or he would be arrested. He allegedly then began yelling “dog” and barking at police. He allegedly also yelled the word “cunt” loudly and continued walking around. He was allegedly directed on five occasions to leave the vicinity but continued to yell at police and refused to leave. This conduct was allegedly observed by elderly people leaving the medical centre who could clearly hear the language that was being used by Mr Kiparoglou. He was then arrested and taken to the police station. He was not interviewed due to his behaviour while in police custody.
Mr Kiparoglou was granted bail by police following the incident at the doctors’ surgery on 8 July 2020. The bail agreement included the standard condition that “I will not leave the State for any reason without lawful permission under the Bail Act 1985.” Further conditions required that he “not attend at the Roxby Downs Doctors’ Surgery” and was “not to make contact with the Roxby Downs Doctors’ Surgery and its staff by any means”.
On 31 July 2020, Magistrate Jackson delivered ex tempore reasons for declining to vary Mr Kiparoglou’s bail conditions. Mr Kiparaglou had submitted that the Magistrate should remove the requirement that he not leave South Australia without the permission of a court or a police officer of appropriate rank. Mr Kiparaglou had submitted that he wanted to be able to travel freely within Australia and, more specifically, to Victoria whenever he chose to visit his elderly mother.
Magistrate Jackson refused to remove the requirement that Mr Kiparoglou not leave South Australia without permission. Her Honour observed that she had no power to remove that mandatory condition but she did have power to grant him permission to travel specifically for a particular purpose or to a particular location or to reside interstate. In that light, there was no impediment to him seeking permission to leave the State and to travel to Victoria when he needed to do so, although the COVID‑19 restrictions may limit that movement. The Magistrate concluded her observations concerning this aspect of the application by stating “[i]f you need to leave South Australia Mr Kiparoglou, you will need to seek permission from the police or from the Court and it would be unusual for it to be refused”. The Magistrate also declined to vary several other conditions of the bail agreement.
Mr Kiparoglou also sought the removal of the condition that prevented him from contacting Roxby Downs Doctors’ surgery. He submitted that he required Dr Gonabadi to address correspondence he had received from his private health insurer and he had not heard directly from her that she no longer wished to treat him. He also needed to contact the Surgery to serve civil proceedings. The police contended that Dr Gonabadi no longer wished to treat Mr Kiparoglou and had arranged for him to obtain his medical records via a third party. There was an alternative medical clinic available in Roxby Downs to treat Mr Kiparoglou.
In light of that information the Magistrate also varied the bail agreement so as to permit Mr Kiparoglou to contact Dr Gonabadi for a medical emergency or for the sole purpose of service of a claim or pre-claim process in accordance with the Uniform Civil Rules. However, on 6 October 2020 Mr Kiparoglou allegedly breached his bail agreement by making contact with Dr Gonabadi through the social media platform, LinkedIn.
On 4 August 2020, a judge of this Court refused permission to appeal and dismissed an interlocutory appeal by Mr Kiparoglou against interlocutory orders made by the Magistrates Court in relation to the prosecution of the alleged speeding offence that occurred on 2 October 2018. That matter is now set for trial in the Magistrates Court on 25 February 2021.
On 8 October 2020, following an application to this Court by Mr Kiparoglou, his bail agreement was varied by Nicholson J to provide that he was “not to make contact with the Roxby Downs Doctors’ Surgery and its staff or Dr Gonabadi by any means”.[1] That variation was made because the term “its staff” may possibly not have extended to Dr Gonabadi. Whether or not that is legally and factually correct, will need to be determined by the Magistrates Court if the prosecution for the alleged breach of bail on 6 October 2020 proceeds to trial.
[1] Emphasis added.
On 18 December 2020, Magistrate Fisher granted Mr Kiparoglou permission to travel to Victoria between 23 December 2020 and 12 January 2021 and to reside at a specified address in Victoria. The purpose of that travel was to enable Mr Kiparoglou to visit his mother. While the documentation might suggest otherwise, I stress that this was not a variation of his bail conditions but the grant of permission under s 11(6) of the Bail Act.
Mr Kiparoglou has complained about an alleged failure by the police to respond to his requests for information relating to the prosecution of the driving offence that had allegedly occurred on 8 July 2020. If in fact the police have failed to meet their disclosure obligations, that matter needs to be taken up by Mr Kiparoglou with the Magistrates Court.
The application to vary
On 12 January 2021, an application by Mr Kiparoglou to vary further his bail conditions came before me. He sought the removal of the requirement that he only travel interstate if he had obtained prior permission. He submitted that he required urgent treatment to remove the risk of paralysis caused by spinal stenosis. He also says that the treatment that he seeks is not available in South Australia.
During the hearing, I drew the attention of Mr Kiparoglou to s 11(6) of the Bail Act which provides as follows:
(6) It is a condition of every bail agreement that the person released under the agreement will not leave the State for any reason—
(a) …
(c) in any other case—without the permission of—
(i) a judge or magistrate; or
(ii) a police officer who is—
(A) of or above the rank of sergeant; or
(B) the responsible officer for a police station.
I explained to Mr Kiparaglou that this condition was mandatory and the Court does not have power to remove it from his bail agreement. However, he could apply to the police or a court for permission to leave the State. I was informed by counsel that the police at Port Augusta had advised that they would be prepared to grant permission to Mr Kiparoglou to travel interstate. For these reasons, I dismissed the application to vary the bail agreement.
Subsequent events
On 14 January 2021, Mr Kiparoglou contacted my chambers by email. He complained that his application had not been properly heard and he wished for it to be heard again. He asserted that he had the right to choose to be treated by any medical practitioner or specialist anywhere in Australia or the world.
Counsel subsequently advised my chambers that the police prosecution unit at Port Augusta had informed her that the police did not have authority to vary Mr Kiparaglou’s bail as the matter had been heard in the Magistrates Court and was regarded as “court bail”. The police had further indicated that, in their view, the matter must be heard by a magistrate. The police added that they would not oppose the application to travel interstate provided that Mr Kiparoglou explained his reasons.
I was concerned that the police had failed to adhere to the position previously stated to the Court by counsel. I was also concerned that there appeared to be confusion between variation of the bail agreement and the grant of permission to travel interstate under the relevant condition of the bail agreement. Accordingly, I called the matter on for directions on 15 January 2021 and indicated that I was prepared to consider the grant of permission.
Mr Kiparoglou then forwarded to my chambers a link to a video published on YouTube that he said explained the medical treatment he was seeking. I viewed the video. It was a presentation by a Dr Jeffrey Cantor of Fort Lauderdale, Florida, USA. Dr Cantor demonstrated the use of ultrasound to remove bony obstructions in the spinal canal so as to treat spinal stenosis and other conditions that affected the spinal cord. The presentation extolled the benefits that were said to be gained from this treatment.
Further information about his condition was provided by Mr Kiparaglou in an affidavit sworn on 15 January 2021. Amongst other matters, he stated that degenerative bone growths (osteophytes) were impinging on his spinal cord at the C6/7 level, which is very serious, and also at the C3/4 level which was less serious but still a matter of concern. He stated that the condition is serious and debilitating and can result in quadriplegia or death if not treated. He wants to travel intestate to seek the correct and preferred treatment which is not available in South Australia. He stated that he had had many consultations with various leading neurologists.
The Office of the Director of Public Prosecutions (ODPP) provided to my chambers copies of statements made by Dr Nirmal Grewal, the owner and practice manager of the Roxby Downs surgery, and by Dr Mehri Azghandi-Gonabadi. Both statements were made on 6 October 2020 and primarily relate to the background to the alleged behaviour of Mr Kiparaglou at the Surgery.
The format, style and contents of the statements left me in no doubt they had been prepared for use in civil proceedings. Counsel confirmed that to be the case and advised that the statements had been obtained by the solicitors acting for Dr Grewal and Dr Gonabadi in the defence of proceedings instituted by Mr Kiparoglou. Mr Kiparaglou objected to the Court receiving the statements as he contended that they contained confidential patient information.
Mr Kiparaglou produced a copy of an email that he had sent to an interstate medical specialist asking whether he conducted surgery using ultrasonic equipment. He received a negative answer. I have no reason to disbelieve his statement that he has contacted other specialists with the same result.
Consideration
Subsequent to the hearing on 15 January 2021, the ODPP advised my chambers that they no longer maintained the position that the police lacked power to grant permission to travel interstate.
It is doubtful that material of the nature produced by Dr Cantor could be published under the restrictions upon advertising that apply to Australian medical practitioners. If so, that may make it more difficult for Mr Kiparoglou to identify an Australian specialist who provides such treatment.
Be that as it may, I have no expert evidence to show that Mr Kiparoglou would benefit from treatment of the type provided by Dr Cantor. Nevertheless, the report of Dr Gonabadi establishes that he suffers from a serious medical condition. I accept that Mr Kiparoglou genuinely believes that the treatment described by Dr Cantor would assist him. He also believes that such treatment is not available in South Australia. It is not necessary for present purposes to decide if either of those beliefs is correct. Those are matters for expert medical advice.
It was not necessary for me to decide whether the contention by Mr Kiparaglou that the Court should not receive the statements made by Dr Grewal and Dr Gonabadi as they contained confidential patient information is soundly based. It was also not necessary for me to decide whether the solicitors acting for the two doctors in the civil proceedings were entitled to provide those statements to the ODPP. It was unnecessary to decide those two issues because the statements did not assist me to decide the questions before the Court, i.e. whether the Court had power to remove the requirement imposed by s 11(6) of the Bail Act and whether the power to grant permission to travel interstate should be exercised. Thus, I did not take into account the content of the statements made by Dr Grewal and Dr Gonabadi.
Conclusion
It is absolutely clear that this Court has no power to remove the condition imposed by s 11(6) of the Bail Act that a person who is subject to a bail agreement cannot leave the State for any reason without having first obtained permission in accordance with that provision. The inclusion of the mandatory words “it is a condition of every bail agreement” in the chapeau to s 11(6) precludes the Court from removing this condition. Accordingly, the decision made by Magistrate Jackson on 31 July 2020 was clearly correct.
While there is no power to remove the condition that Mr Kiparaglou not travel interstate without permission, it is an entirely different question as to whether permission should be granted under s 11(6).
The two alleged offences to which the bail agreement relates are summary offences of a public order nature. Mr Kiparaglou’s prior offending has been minor and dates back many years. Apart from the one current allegation of a breach of a bail condition, he does not have a history of non-compliance with court orders. In light of those several matters combined with his medical condition, subject to what follows, this would be an appropriate case to grant permission to travel outside South Australia under s 11(6).
I rejected Mr Kiparaglou’s contention that he should be granted unlimited permission to travel wherever and whenever he wanted. A bail authority should be informed in advance of the reasons for and details of proposed interstate travel so that it may determine whether it is appropriate to grant consent. In this case it would be necessary for Mr Kiparaglou to have made an appointment at a particular time with a named medical specialist at a particular location. The same principle would apply if he is to undergo surgery. If he supplies the required information, and in the absence of any other disqualifying factor, I see no reason why an appropriate authority should not grant permission.
I see no reason why Mr Kiparaglou cannot use the internet and telephone to locate a specialist who may be able to provide the treatment he seeks, although the limitations on advertising by medical practitioners may make that task more difficult than it would be in the USA. I also understand that a medical specialist would not agree to see or treat Mr Kiparaglou without a referral to him or her from a general practitioner.[2] The practical result of this requirement is that Mr Kiparaglou will need to have identified the specialist whom he wishes to consult and have a general practitioner provide a referral addressed to that person. The specialist would almost certainly require Mr Kiparaglou to have made an appointment and not attend unannounced. For these reasons, I do not accept the contention of Mr Kiparaglou that the requirement that he provide details of his appointment will prevent him from seeking the treatment that he believes he needs.
[2] I consider that this requirement is so well established that I may take judicial notice of its existence.

For the removal of doubt, I confirm that s 11(6) of the Bail Act authorises either a court or a police officer at the specified level to grant permission for a person on bail to travel or live outside South Australia. Contrary to what has been suggested in this case by the parties, the grant of permission does not constitute or require the variation of a bail agreement. It is the exercise of a power specifically conferred by all bail agreements.
The fact that bail has been granted by a court does not, of itself, preclude a police officer at the specified level from granting permission for travel outside South Australia. However, if a court has specifically refused a person permission to travel outside South Australia, in the absence of a significant change in relevant circumstances, it would generally not be appropriate for a police officer to grant permission.
The decision made by Magistrate Jackson on 31 July 2020 specifically, and correctly, recognised that either a court or the police might in future grant Mr Kiparoglou permission to travel outside South Australia. However, her Honour rejected his request for unfettered permission to travel. Following that decision, it was clearly open to the police to grant permission once Mr Kiparoglou supplied details of what was intended. Magistrate Jackson did not suggest otherwise. The supply of firm details would constitute the necessary significant change in relevant circumstances to which I have referred and thereby warrant the police exercising the power to grant permission if they were satisfied as to his reasons.
For these reasons, I refused to vary the terms of the bail agreement entered by Mr Kiparoglou and also refused to grant permission for him to travel outside South Australia.